RARE BUT DEADLY: New Case Reminds That There’s A Lot More to the TCPA Than ATDS Claims
Tuesday, November 16, 2021

The TCPA is often wrongly regarded as preventing solely ATDS calls. And while TCPA.World has been covering the onslaught of lawsuits arising out of prerecorded calls and purported violations of the national DNC post-Facebook, there is an entire catalog of additional claims out there that are rarely made–but just as dangerous.

In Schweitzer v. Energy, CIVIL ACTION No. 2:20-cv-04436-AB, 2021 U.S. Dist. LEXIS 21971 (E.D. Pa. Nov. 15, 2021) the court considered the viability of two such claims (this is how the court framed the issues but–as we shall see–this isn’t quite right):

  • Initiating telephone calls and failing to transfer to a live sales agent within two seconds of a called party’s completed greeting, in violation of 47 C.F.R. § 64.1200(a)(7)(i);

  • Failing to disconnect unanswered telemarketing calls to Plaintiff prior to at least 15 seconds or four (4) rings, in violation of 47 C.F.R. § 64.1200(a)(6).

The Court refused to grant summary judgment to the Defendant on either claim, finding a disputed issue of fact on both:

On multiple calls recorded by Mr. Schweitzer, more than 2 seconds elapse between when Mr. Schweitzer answers the phone and the caller’s response. See ECF No. 29. Finally, Direct Energy argues that Mr. Schweitzer has not proven whether unanswered telemarketing calls to Plaintiff were disconnected prior to at least 15 seconds or four (4) rings. See ECF No. 20 at ¶ 10. Based on the evidence presented, there is a dispute of material fact as to whether unanswered telemarketing calls to Plaintiff were disconnected prior to at least 15 seconds or four (4) rings. See ECF No. 20-2 at p. 27-28. Because genuine disputes of material fact exist, Direct Energy is not entitled to judgment as a matter of law on any of Mr. Schweitzer’s TCPA claims

Because these so claims are so rarely made they don’t get much attention at conferences–although I covered these theories at the Palooza, in case you missed it.

Importantly, however, the Scwheitzer court doesn’t quite frame the issues properly. 47 C.F.R. § 64.1200(a)(7)(i) provides more than that a call be transferred to a live agent within two seconds of a greeting–a telemarketer must assure that within two seconds the telemarketer must provide “a prerecorded identification and opt-out message that is limited to disclosing that the call was for “telemarketing purposes” and states the name of the business, entity, or individual on whose behalf the call was placed, and a telephone number for such business, entity, or individual that permits the called person to make a do-not-call request during regular business hours for the duration of the telemarketing campaign; provided, that, such telephone number may not be a 900 number or any other number for which charges exceed local or long distance transmission charges…”

It is critical to keep this provision in mind. Even if you are using technology that is not an ATDS you must aim for a zero percent abandonment rate on live calls if you are calling without consent. If you cannot connect a live agent within two seconds of a person answering the phone then you have to play a prerecorded message–which arguably converts the call into a prerecorded call requiring express written consent.

In other words, there is no way to comply with the TCPA’s requirements if you are making marketing calls without consent and cannot assure a zero percent abandonment rate–which is another reason Human Selection dialers are so critical for any one venturing to make marketing calls without consent (dangerous waters, to be sure.)

Now, as to 47 C.F.R. § 64.1200(a)(6) the Schwietzer court–and perhaps the parties–have this thing backward. The provision provides that no person shall “disconnect an unanswered telemarketing call prior to at least 15 seconds or four (4) rings.” The idea is that a telemarketer has to give people at least 15 seconds to answer a phone before disconnecting so that people are rushing out of the shower to answer a call and be greeted with a disconnected line.

Bizarrely, however, the Shcwietzer court suggests that a telemarketer must disconnect a call within 15 seconds. That’s just a flat misread of the provision–and another example of just how wild a place TCPAWorld is.

Violations of thee provisions carry the same $500.00 per call damages as other portions of the TCPA–so they can be just as deadly and must be taken just as seriously.


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